Citation Nr: 0319943
Decision Date: 08/12/03 Archive Date: 08/25/03
DOCKET NO. 02-03 341A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for bilateral tinnitus.
3. Entitlement to service connection for low back
disability.
4. Entitlement to service connection for residuals of viral
bronchopneumonia.
5. Entitlement to service connection for bronchial asthma
and chronic obstructive pulmonary disease (COPD), to include
as related to exposure to Agent Orange.
6. Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
REMAND
The veteran retired in December 1979 after more than 20 years
of active service.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In a June 1998 rating decision the RO denied service
connection for multiple disabilities, including hypertension,
finding the claims to be not well grounded. In a letter
received in December 1998, the veteran discussed several of
the disabilities, but did not mention hypertension. The RO
construed that letter as a notice of disagreement regarding
claims for hearing loss, tinnitus, low back disability,
residuals of viral pneumonia, bronchial asthma and COPD.
After consideration of additional evidence, the RO again
denied the claims as not well grounded in an August 1999
rating decision. The RO notified the veteran of its decision
and his appellate rights, but he did not respond. In a
November 2001 letter, the RO notified the veteran of the
passage of the Veterans Claims Assistance Act of 2000 (VCAA)
and explained VA's enhanced duties to provide notice and
assistance with respect to veterans' claims and at the same
time solicited additional information and evidence from the
veteran.
In a rating decision dated in February 2002, the RO reviewed
the previously denied claims, including hypertension, and
again denied them. The RO provided notice of its decision,
and, in addition, provided a separate statement of the case
for the issues of entitlement to service connection for
bilateral hearing loss, bilateral tinnitus, low back
disability, residuals of bronchopneumonia and bronchial
asthma and COPD. The veteran filed a VA Form 9, Appeal to
Board of Veterans' Appeals, in April 2002 and indicated in an
attached letter that he wished to continue his appeal with
respect to the issues addressed in the statement of the case.
In addition, the veteran requested assistance in development
of evidence pertaining his hypertension and indicated that he
wanted reevaluation of the claim, which the Board construes
as a notice of disagreement with the denial of service
connection for hypertension in the February 2002 rating
decision. The Board will, therefore, request that the RO
provide the veteran with a statement of the case for that
claim. See Manlincon v. West, 12 Vet. App. 238 (1999).
The RO has reported that the service department has not been
able to provide complete service medical records for the
veteran; those that are currently in the claims file are
reports of enlistment and pre-flight pilot examinations in
December 1959, the report of a commission and award of pilot
rating examination in December 1960, the report of a regular
commission examination in June 1963 and a certification of no
change in physical condition dated in September 1963. The RO
has acknowledged that the veteran provided copies of his
service medical records in November 1998, which included
copies of records for the period from December 1959 to
December 1979. Although the RO referred copies of service
medical records from the veteran for the period from December
1959 to December 1979 in its August 1999 rating decision and
to service medical records for the period from March 1961 to
December 1979 in its February 2002 rating decision and
February 2002 statement of the case, those records are not
currently in the file. The Board notes that in his November
1998 letter the veteran indicated that the copies of service
medical records he was submitting to the RO totaled 84 pages.
The RO should undertake a search for those records. If they
are not found, the RO should request that the veteran provide
an additional copy of those records to VA.
The veteran has stated that he received medical treatment
from a Marine flight surgeon at Camp Pendleton Marine Corps
Air Station in the year following retirement from service.
He has indicated that those records may document hypertension
within a year after service and has requested assistance
obtaining those records. Such assistance should be provided.
The veteran contends that the medical problems for which he
is seeking service connection are related to his combat
service, which he reports extended from 1965 through 1972.
He was an Air Force pilot and reports he flew a total of 335
combat missions and asserts that his hearing loss and
tinnitus are due to noise exposure and that the "G" forces
on his low back caused his disc problems. He also states
that he flew Ranch Hand escort missions involving the
delivery of Agent Orange on target areas and believes that
his chemical exposure eventually led to his COPD and related
conditions. It is the opinion of the Board that further
development of the veteran's claims should undertaken,
including additional examinations with medical opinions as to
the etiology of the veteran's claimed disabilities.
To ensure that the VA has met its duty to assist the veteran
in developing the facts pertinent to his claims and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should attempt to locate and
associate with the claims file copies of
service medical records furnished to the
RO in November 1998. If the RO is unable
to locate those records, it should
contact the veteran and request that he
again supply a copy of his complete
service medical records.
2. In addition, the RO should contact
the veteran and request that he identify
the names, addresses and approximate
dates of treatment for all health care
providers, VA and non-VA, from which he
has received treatment or evaluation for
any of his claimed disabilities at any
time since service. With necessary
authorization, the RO should obtain and
associate with the claims file all
records identified by the veteran that
have not been obtained previously. The
RO should advise the veteran to submit
evidence relating his current respiratory
disability Agent Orange exposure in
service. In any event, with
authorization and identifying information
from the veteran, the RO should attempt
to obtain records of treatment of the
veteran by a flight surgeon at the Marine
Corps Air Station, Camp Pendleton,
California, starting in January 1980.
All actions to obtain the requested
records should be documented fully by the
RO.
3. In view of the veteran's expansion of
his claim for service connection for
bronchial asthma and COPD to include as
due to exposure to Agent Orange, the RO
must ensure that all notice and
development action required by
38 U.S.C.A. §§ 5102, 5103 and 5103A (West
2002) are fully complied with and
satisfied or that the veteran has waived
additional time to submit evidence with
respect to this claim. See 38 C.F.R.
§ 3.159 (2002).
4. Thereafter, the RO should arrange for
a VA audiology examination to determine
the nature and etiology of the veteran's
bilateral hearing loss and tinnitus. All
indicated studies should be performed.
The examiner should be requested to
provide an opinion, with complete
rationale, as to whether it is at least
as likely as not that any bilateral
hearing loss and/or tinnitus is causally
related to noise exposure in service,
including noise exposure experience as a
pilot. The claims file must be provided
to the examiner for review in connection
with the examination and that it was
available should be noted in the
examination report.
5. The RO should also arrange for a VA
orthopedic examination to determine the
nature and etiology of the veteran's
claimed low back disability. All
indicated studies should be performed.
Based on examination results and review
of the record, the examiner should
provide an opinion, with complete
rationale, as to whether it is at least
as likely as not that any current low
back disability is causally related to
service or any incident of service,
including "G" forces on the low back
associated with piloting tanker and
fighter aircraft during 20 years service,
including missions in KC-135A tanker
aircraft and missions in F-4D and F-4E
aircraft. The claims file must be
provided to the examiner for review in
connection with the examination and that
it was available should be noted in the
examination report.
6. The RO should also arrange for an
appropriate VA examination to determine
the nature and extent of the veteran's
claimed respiratory disabilities,
including residuals of viral
bronchopneumonia, bronchial asthma and
COPD. All indicated studies should be
performed. The examiner should be
requested to identify any and all current
residuals of the veteran's in-service
viral bronchopneumonia. Based on
examination results and review of the
record, the examiner should also be
requested to provide an opinion, with
complete rationale, as to whether it is
at least as likely as not that any
current bronchial asthma and/or COPD is
causally related to service, including
episodes of viral bronchopneumonia while
in service. If the veteran submits
evidence relating his current respiratory
disability to Agent Orange exposure, this
should also be considered. The claims
file must be provided to the examiner for
review in connection with the examination
and that it was available should be noted
in the examination report.
7. In addition, the RO should arrange
for an appropriate VA examination to
determine the nature and extent of the
veteran's hypertension. All indicated
studies should be performed. Based on
examination results and review of the
record, the examiner should be requested
to provide an opinion, with complete
rationale, as to whether it is at least
as likely as not that any hypertension is
causally related to service or any
incident of service. The claims file
must be provided to the examiner for
review in connection with the examination
and that it was available should be noted
in the examination report.
8. The RO must review the claims file
and ensure, with respect to all issues,
that all notification and development
action required by 38 U.S.C.A. §§ 5102,
5103 and 5103A (West 2002) are fully
complied with and satisfied or that the
veteran has waived additional time to
submit evidence. See 38 C.F.R. § 3.159
(2002).
9. After full compliance with notice and
development requirements, the RO should
readjudicate the issues on appeal. If
service connection remains denied for
hypertension, the RO should issue a
statement of the case with instructions
as to the requirements for perfecting an
appeal as to that claim. The veteran
must file a substantive appeal as to this
issue. If the benefits sought on appeal
as to the claims for service connection
for bilateral hearing loss, bilateral
tinnitus, low back disability, residuals
of viral bronchopneumonia or bronchial
asthma and COPD, to include as due to
Agent Orange exposure, are not granted to
the veteran's satisfaction, the RO should
issue a supplemental statement of the
case that addresses all evidence not
previously considered by the RO and
informs the veteran of laws and
regulations pertinent to his claims. The
veteran and his representative should be
provided an appropriate opportunity to
respond.
Thereafter, the case should be returned to the Board, if
otherwise in order. The Board intimates no opinion as to the
ultimate outcome of this case. The veteran need take no
action unless otherwise notified by the RO.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
STEVEN L. COHN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).